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Can My Boss Not Pay Me Overtime By Calling Me As Independent Contractor? I Need The Best Lawyer Wage And Hour Lawyers!

On Behalf of | Feb 18, 2016 | Wage: Minimum Wage, Wage: Overtime |

Best Ohio Overtime Wage Theft Attorney Answer: Am I really an independent contractor? Are independent contractors entitled to overtime? If I am misclassified as an independent contractor, what can I do to get make sure I get paid overtime that my job owes me?

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Employees in Ohio that work over 40 hours per week are supposed to be paid time and half for each overtime hour that they work. Sounds pretty simple and straightforward. Yet, every day bosses, managers, and supervisors think that they can outsmart the law. Our overtime attorneys have blogged numerous times about the rampant abuse of the “independent contractor” status by employers who want to cheat their employees out of overtime pay. (See Employee or Independent Contractor? Your Employer May Be Misclassifying You.Top Wage and Hour Lawyer Reply: What If My Job Misclassifies Me As An Independent Contractor?Am I Being Misclassified As An Independent Contractor?; and Am I An Employee Or An Independent Contractor? Best Ohio Wage Lawyer Reply). Indeed, the problem is so pervasive that the Department of Labor (“DOL“) has recently issued a memo in which it warns “most workers are employees under the [Fair Labor Standards Act] (‘FLSA)’s broad definitions”

An independent contractor is supposed to be somebody who is in business for themselves. Yet, we see time and time again examples of employers hiring people who are clearly not in business for themselves, calling them independent contractors, and then freely violating wage and hour laws.

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As the DOL explains in its memo, the FLSA defines “employ” as “to suffer or permit to work.” Moreover, courts utilize the “economic realities test,” which focuses on the degree to which the worker is economically dependent on the employer versus truly being in business for him or herself, in determining whether a worker is an employee or truly an independent contractor. The DOL urges that the economic realities test should be applied with the broad meaning of “employ” utilized by the act in mind. All this means is that all doubts will generally be resolved in favor of finding that a worker is an employee.

The economic reality test is designed to answer one question, which is dispositive: is the worker truly an independent business, or are they economically dependent on the employer? Courts will look to the following factors:

  • Is the work an integral part of the employer’s business? As the DOL explains, “[t]he policy behind the “suffer or permit” statutory language was to bring within the scope of employment workers integrated into an employer’s business. Thus, if the worker’s work is integral to the employer’s business, it is more likely the worker is an employee.
  • Does the worker’s managerial skill effect the worker’s ability for profit or loss? This does not mean making more, or making less, based on how many hours you work, or how many jobs you do. Thus, the question is whether the worker faces the possibility of loss like a business would, rather than reduced wages. If there is no opportunity for loss based upon managerial skills, it is more likely that the worker is an employee.
  • What is the worker’s investment in the business compared to the investment of the employer? A worker must have some investment in the business to be considered an independent contractor. However, the investment must be significant relative to the employers to be considered an independent contractor. If things are uneven, this suggest economic dependence. Even if the worker has invested thousands (such as buying a vehicle specific to the business), they may still be an employee if the employer has invested significantly more.
  • Does the work that the worker is doing require special skills and initiative? This factor looks more towards the workers business skills, judgment, and initiative, than their technical skills in doing the job. Thus, an example of specials skills would not include a carpenter who may be very skilled, but would encompass a skilled carpenter who owns his own business and provides his products or services to a variety of contractors. Again, the analysis looks as to whether the worker is running his own business, or whether they are economically dependent on one employer, regardless of their skill level.
  • Is the relationship between the worker and the employer indefinite? If a worker is working for a certain employer until further notice, or indefinitely, that tends to suggest that they an employee hired to work for the employer, rather than an independent contractor hired to perform a specific job.
  • How much control does the employer have over the work? Again, does this look like an independent business hired to get a job done, using its own equipment and methods, or an employee who must do things a certain way?

None of the above factors is more significant in the analysis than another, and they must all be considered together.

As the above test makes clear, most people are employees, and not independent contractors. This has significant ramifications for workers who are labeled as independent contractors by their employer, and denied overtime.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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